Here is an article by Dr Stupid on the subject of the copyright notices in the BSDi settlement files. After doing some research, he comes to the conclusion that whatever is in the sealed USL/BSDi settlement, it appears to be irrelevant to the Linux ABI files, because they do not appear to have been copied or derived from those in BSD. Here is his report, with his research.

Dr Stupid is a senior software engineer and describes himself also the 'licensing
and IP man' at his UK firm, and he has been professionally involved in drawing up EULAs and licences for various products.

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The BSD Smokescreen

~ by Dr. Stupid

SCO's mentioning the USL vs BSDi settlement in connection with their threatened actions against Linux end users gives the last
section of an OSnews interview published earlier in the year
fresh relevance. It gives a hint why SCO may feel the
settlement gives them ammunition but it also helps to put that claim in
perspective.

The interviewer asked some FreeBSD developers about SCO's allegations. This, you will remember, was back in April, when SCO had made vague noises that led some to think they might intend to go after the BSDs (and Apple in particular.) The status of the
4.4 BSD-Lite codebase, on which all the current open-source BSDs are
built, is highly relevant to Linux, because in the past, the Linux kernel has drawn on
code from the BSD-Lite kernel -- although there is very little
overlap now between the Linux kernel and BSD-Lite.

Some pertinent quotes from the article:

"[There is BSD code derived] from
Unix 6th and 7th edition, as well as 32V. Only the copyrights were
similar to those used in System V source files. The code in question was
merely blessed by USL and acknowledged as originating there by the
Regents."

"There never was any System V code in
any BSD. Ever."

The article includes a link to the original
press release about the settlement. A quote from that press release gives a clue as to the terms of the settlement:

"The settlement restricts further use
and distribution of certain files in the Second Networking Release and requires that certain files in 4.4 BSD-Lite
include a USL copyright notice. In addition to providing several
enhancements, the new 4.4 BSD-Lite Release will replace most of the
restricted files and incorporates all the agreed-upon modifications and
notices. Thus, 4.4 BSD-Lite will not require a license from nor payment
of royalties to USL. The University strongly recommends that 4.4
BSD-Lite be substituted for Net2." [emphasis mine.]

The FreeBSD developers expanded on this:

"All files in the Mac OS or FreeBSD
source trees that have USL copyrights are specifically covered under an
agreement to settle the 1992 lawsuit between the University of
California Regents and Novel [sic] (the folks that purchased USL while the
lawsuit was going on). That agreement specifically stated that Novel, [sic]
and its successors, would not sue
anybody who based their systems on 4.4lite. FreeBSD is based on
4.4lite, and is therefore immunized against such legal action based on
copyright claims. UCB, for their part, removed certain files, rewrote others and
added the copyright notices to still others. FreeBSD has no code that
infringes upon the SCO group's intellectual property." [again,
emphasis mine.]

This interview states aspects of the settlement in a very clear and
succinct way, and it makes some things clear. All USL code in BSD is derived from pre-SysV code. Therefore, any BSD
code re-used in Linux is *not* SysV code, but based on so-called
"Ancient Unix", which was released
under a BSD-style licence by Caldera after the sealed settlement SCO relies on. That means that any action
SCO could take over BSD code in Linux would be restricted to complaints
about missing copyright notices (if there are any). A simple corrective action seems obvious.

Darl McBride spoke of copyright stripping in his Harvard talk but had
hinted at the missing copyright notices angle some time ago in his comment
regarding the piece of code reused from ancient unix by SGI, the
infamous ate_utils.c:

"However, nothing can change the fact
that a Linux developer on the payroll of Silicon Graphics stripped copyright attributions from
copyrighted System V code that was licensed to Silicon Graphics under
strict conditions of use, and then contributed that source code into
Linux as though it was clean code owned and controlled by SGI."
[emphasis mine.]

Most interestingly (for me at least) there is a hint about why SCO
talks of rights with regards to the settlement.

"That agreement specifically stated
that Novel, [sic] and its successors, would not sue anybody who based their
systems on 4.4lite."

That statement could be taken to read (and
SCO might assert) that Novell (and thus their
successors in interest, which SCO claims to be) reserved the right to sue someone who violated
the USL copyrights in systems not based on 4.4-Lite. In other words, it is conceivable that SCO may assert that it's acceptable to use this code in BSD, but not in Linux.
The reporters at Newsforge came to a similar conclusion in this
article:

"Today we are leaning more to the
view that SCO is going to claim that the 1994 settlement does not allow
the use of Unix code in Linux, even if it was part of 4.4 BSD Lite."

"The UNIX ABIs were never intended or
authorized for unrestricted use or distribution under the GPL in Linux.
As the copyright holder, SCO has never granted such permission."

Novell, who have an advantage over most of us in knowing precisely what
was in the settlement, may well have a different interpretation from
SCO.

In fact, code does not have to be released under the GPL to
be included in Linux, merely a GPL-*compatible* license. The
BSD4.4-Lite license, especially after UCB waived its advertising requirement, is
GPL-compatible. So these header files could have been legally included
in Linux without any further grant of permission from either UCB or USL's
successor in interest. But as we shall see, this is a moot point since the
headers are not and never were copied into Linux.

We can get further insight into the terms of the sealed settlement
-- at least as far as they affected BSD -- from the release
of BSD 4.4-Lite. This release had all encumbered files removed; any
remaining code that had been written by USL
was given permission to remain in BSD. One condition of the settlement
(see above) was that a USL copyright notice had to be attached to those
files which contained USL-written code.

BSD4.4-Lite is still available from various online archives (search for
"4.4BSD-Lite.tar.gz" on Google.) Having obtained a tarball of the
original BSD4.4-Lite sources, I located all the kernel source files with
this USL copyright notice: 81 files out of about 2200.

Here is the copyright notice used in the files:

/*
* Copyright (c) 1991, 1993
* The Regents of the University of
California. All rights reserved.
* (c) UNIX System Laboratories, Inc.
* All or some portions of this file are derived from material
licensed
* to the University of California by American Telephone and
Telegraph
* Co. or Unix System Laboratories, Inc. and are reproduced herein
with
* the permission of UNIX System Laboratories, Inc.
*
* Redistribution and use in source and binary forms, with or
without
* modification, are permitted provided that the following
conditions
* are met:
* 1. Redistributions of source code must retain the above
copyright
* notice, this list of conditions and the
following disclaimer.
* 2. Redistributions in binary form must reproduce the above
copyright
* notice, this list of conditions and the
following disclaimer in the
* documentation and/or other materials provided
with the distribution.
* 3. All advertising materials mentioning features or use of this
software
* must display the following acknowledgement:
* This product includes software
developed by the University of
* California, Berkeley and its
contributors.
* 4. Neither the name of the University nor the names of its
contributors
* may be used to endorse or promote products
derived from this software
* without specific prior written permission.

Two things are immediately apparent:

1) There are no special additional restrictions
on the redistribution of USL-derived BSD files, beyond the usual
BSD-license stipulations.

2) In this version, the so-called "obnoxious advertising clause" is
present; but note that even in the USL-derived files, the advertising
clause doesn't mention USL by name, just UCB. That is, even a compliant
use of the file (I'm ignoring for the moment the waiver that the FSF
negotiated with UCB) would not feature USL in its advertising by name.
You can draw your own conclusions as to whether USL would be in fact
damaged by a non-compliant use.

Some of the files are extremely trivial, and it's hard to see how they
could contain genuinely copyrightable material. In others, code has been
deleted - presumably as part of the settlement terms. For example, in
kern_acct.c the function acct_process() has a body with just the comment
"Body deleted".

I take this to mean that the original body was removed as part of the
settlement and just the "stub" left behind so that the kernel could
still be compiled and used.

It seems fair to assume that USL's successors in interest could only
pursue copyright suits with respect to these 81 files, since the
remaining files in BSD bear no USL copyright. So the next question would logically be, Is
there any code in these 81 files which also appears in the Linux kernel?

Now, there are similar symbol names (like AFORK and ac_uid) but they
are needed for API (not ABI) compatibility. It is clear to me even on casual
inspection, therefore, that the Linux file was not copied verbatim from BSD-Lite.

It is also worth pointing out that there is no a.out.h file in
BSD-Lite. There is an equivalent file, sys/tahoe/include/exec.h, which defines the same data
structures as are defined in Linux's a.out.h file - but it has no USL copyright notice, only UCB.

What about the files that UCB agreed to remove from BSD-Lite? Although
we can't see the settlement (yet), it is possible to obtain a shortlist
by comparing the Net/2 version of BSD (which started the suit) and
BSD-Lite to make an educated guess about the removed files.

Of those candidate files, only two seem to be even relevant as far as
name and function is concerned: shm.c and shm.h. However, the Linux shm
files and BSD shm files are very different. Moreover, people with access
to both SysV and Linux confirmed for me that the shm files are different there, too. So
again, there seems to be nothing to support an allegation that these files were
copied into Linux.

The conclusion I have reached, then, is that whatever rights were granted to USL by the
1992 settlement over certain files in BSD, those rights appear to be irrelevant
to the Linux ABI files listed by SCO. It also seems worth mentioning that the Linux coders were not a party to the sealed settlement, in any case.